DOJ, FTC, and HHS Unveil Portal for Public Reporting on Anticompetitive and Monopolistic Practices in Health Care

In the latest sign that federal enforcers remain focused on increasing antitrust enforcement, last Thursday, the Justice Department (DOJ), Federal Trade Commission (FTC) and the Department of Health and Human Services (HHS) revealed an online portal, HealthyCompetition.gov, to encourage the public to submit reports on potential anticompetitive and monopolistic conduct in the healthcare sector.  The initiative seeks to address concerns that such behavior may affect healthcare affordability and quality, and employee wages. 

The website invites the public to help the agencies “ensure access to fair and competitive healthcare markets” for consumers by submitting “healthcare competition complaints.”  The portal educates visitors on the “federal laws [that] ensure healthy competition,” the Sherman Act, Clayton Act, Federal Trade Commission Act, and Robinson-Patman Act and provides examples of “conduct that can harm competition in healthcare,” including:

1. 1. “consolidation, joint ventures, and ‘roll-ups’” (or “serial acquisitions”);
   2. “[a]greements among competitors to limit or fix the terms of employment for employees”;
   3. “collusion or price fixing” among competitors;  
   4. “[a]ctions to limit transparency” about “healthcare options and costs”;
   5. “healthcare contract language and other practices [such as anti-tiering and anti-steering clauses in insurer contracts] that restrict competition”;
   6. “anticompetitive uses of healthcare data,” such as “acquisitions and control of large amounts of data by a few companies” that “prevent other companies from entering the market and reduce future innovation”; and
   7. “unnecessary healthcare provider recertification or accreditation requirements” that may “raise the costs of practicing medicine” and “reduce the number of healthcare practitioners.”

The DOJ and FTC will review submissions made through the online portal, which may lead to the “opening [of] an investigation under the relevant legal authorities or coordinating on investigation efforts” should the reports raise competitive concerns.  It is noteworthy that several of the examples provided also directly connect with HHS regulations regarding health data, including HIPAA, information blocking rules, and price transparency rules.  The DOJ identified examples of violations of these laws as potential violations of antitrust laws, but notes that there could be a violation of antitrust laws even if such conduct is consistent with other federal law, including HIPAA.  Healthcare organizations therefore need to consider this guidance in connection with other regulatory consideration.

This portal’s unveiling reflects further progress under President Biden’s July 2021 Executive Order on Promoting Competition in the American Economy, which directed federal agencies to adopt a “whole-of-government” approach to antitrust enforcement in healthcare (and other sectors), including by coordinating across agencies on oversight, investigations, and remedies.  In December 2023, the DOJ, FTC, and HHS announced plans to “work[] together to lower health care costs, including [by] partnering on new initiatives which include a joint Request for Information [RFI] to seek input on how private-equity and other corporations’ control of health care is impacting Americans.”  In March 2024, the agencies followed through on their promise by launching a “cross-government public inquiry” and related RFI into the increasing involvement of private equity and corporations in the health care sector, which expressed concerns that private equity transactions in health care “may lead to a maximizing of profits at the expense of quality care.”  The initiatives focused primarily on gathering information regarding the effects of consolidation from certain health care transactions, such as “roll-ups,” carried out by private equity firms, alternative asset managers, health systems, and private payers.  Public comments are due on May 6, 2024.  The HealthyCompetition.gov portal also seeks information regarding the kinds of transactions that are subject to the current inquiry and related RFI.

These recent interagency collaborations are also consistent with ongoing enforcement trends and agency statements regarding the healthcare sector.  In a February 2024 speech before the American Medical Association, FTC Chair Lina Khan described collaborative enforcement efforts with the DOJ and HHS in the healthcare industry following President Biden’s Executive Order.  She set forth five specific enforcement priorities for the healthcare industry, including: (1) inquiries into intermediaries in healthcare supply chains, including group purchasing organizations and drug wholesalers that may contribute to generic drug shortages; (2) scrutiny into allegedly unlawful consolidation and “roll-ups” in health care by private equity firms that may lead to increased healthcare costs, lower quality, and less access; (3) potential antitrust harm in labor markets, including through mergers and non-compete clauses in employment contracts; (4) challenges to allegedly unlawful practices in the pharmaceutical industry that may be driving higher drug costs; and (5) a focus on protecting privacy in health care by emphasizing companies’ need to secure sensitive health data.  

The launch of HealthyCompetition.gov clearly signals that federal agencies’ intense focus on potential antitrust harms in health care remains unabated and may be intensifying.  Health care companies should work closely with antitrust counsel and health care regulatory counsel to ensure their business strategies are adequately protected against increasing antitrust risk while considering the intersection with other regulations.